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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-09-LA-0115
)
South Bay Aviation, Inc. NAL/Acct. No.: 201132900002
)
Torrance, California FRN: 0019547736
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: January 28, 2011 Released: January 31, 2011
By the District Director, Los Angeles District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that South Bay Aviation, Inc. ("South Bay Aviation"), apparently
willfully and repeatedly violated Section 301 of the Communications
Act of 1934, as amended ("Communications Act" or "Act") and Section
1.903(a) of the Commission's Rules ("Rules") by operating a radio
transmitter without the requisite Commission authorization. We
conclude that South Bay Aviation is apparently liable for a forfeiture
in the amount of twelve thousand dollars ($12,000).
II. BACKGROUND
2. On February 2, 2010, in response to a complaint that a person or
entity was operating a station on frequency 122.950 MHz at the
Torrance Airport in Torrance, California, without a license, an agent
from the Enforcement Bureau's Los Angeles Office ("Los Angeles
Office") monitored transmissions on 122.950 MHz at the Torrance
Airport. The Los Angeles agent approached South Bay Aviation's
offices, located at the Torrance Airport, and observed a Unicom base
station set to operate on frequency 122.950 MHz. The agent conducted
an inspection of the base station and confirmed that South Bay
Aviation was operating on 122.950 MHz. South Bay Aviation's President
and Chief Executive Officer ("President/CEO"), who was present at the
time of the inspection, was unable to provide a license or any other
documentation authorizing South Bay Aviation's operation on 122.950
MHz.
3. The next day, the Los Angeles agent received a voice mail message from
South Bay Aviation's President/CEO stating that South Bay Aviation had
a license, with call sign KTV5, but that the license had expired. A
review of the Commission's records revealed that the KTV5 license had
expired on August 3, 2000 and was canceled by the Commission on May 6,
2001. Moreover, the expired KTV5 license had authorized operation on
122.950 MHz at a fixed location at the Long Beach Airport, in Long
Beach, California, not at South Bay Aviation's current location at the
Torrance Airport in Torrance, California.
4. On March 23, 2010, the Los Angeles Office issued a Letter of Inquiry
to South Bay Aviation. On April 5, 2010, the Los Angeles Office
received South Bay Aviation's response to the LOI. In the LOI
Response, South Bay Aviation acknowledged that it did not have a
license to operate on 122.950 MHz at the Torrance Airport location and
that it was unaware that its expired license had to be renewed or had
a "cancellation date." South Bay Aviation also indicated that it had
operated on the frequency 122.950 MHz subsequent to its relocation to
a new permanent facility at its current address of record at the
Torrance Airport in California in 2003. South Bay Aviation further
stated that upon becoming aware of the license expiration after
communications with the Los Angeles Office, it ceased operation on
122.950 MHz and filed a new application to operate on the frequency at
the Torrance Airport location. A new license, call sign WQLY696, for
operation on 122.950 MHz at the Torrance Airport location, was granted
to South Bay on May 28, 2010.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 301 of the Act states that "[n]o person shall use or operate
any apparatus for the transmission of energy or communications or
signals by radio... except under and in accordance with this Act and
with a license in that behalf granted under the provisions of this
Act." Section 1.903(a) of the Rules states that "[s]tations in the
Wireless Radio Services must be used and operated only in accordance
with the rules applicable to their particular service as set forth in
this title and with a valid authorization granted by the Commission .
. . ." On February 2, 2010, a Los Angeles agent observed a base
station in operation on 122.950 MHz at South Bay Aviation, located at
the Torrance Airport in Torrance, California. At the time of the
inspection, South Bay Aviation's President/CEO did not have a license
or any other documentation authorizing South Bay Aviation's operation
on 122.950 MHz. Subsequently, South Bay Aviation acknowledged that it
did not have a license to operate on 122.950 MHz as its license for
operation on this frequency at a different location had expired on
August 3, 2000. The violation was repeated because it occurred on more
than one day. The violation was willful because subsequent to the
expiration of its license, South Bay Aviation consciously and
deliberately operated on frequency 122.950 MHz at the Torrance
Airport, an action that violates the licensing requirements of Section
301 of the Act and Section 1.903(a) of the Rules. Based on the
evidence before us, we find that South Bay Aviation apparently
willfully and repeatedly violated Section 301 of the Act and Section
1.903(a) of the Rules.
7. Pursuant to the Forfeiture Policy Statement and Section 1.80 of the
Rules, the base forfeiture amount for operation without an instrument
of authorization is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. South Bay Aviation has apparently been operating on the
frequency 122.950 MHz at the Torrance Airport since 2003, despite the
expiration of its former license, in 2000, for operation at the Long
Beach Airport. While earlier precedent might suggest a lower
forfeiture amount, we note that the unlicensed operation was ongoing
for several years. In addition, we are mindful of the fact that the
reduced forfeiture amounts applied in past cases do not appear to be
creating sufficient incentives for licensees to monitor their license
expiration dates. Under the totality of the evidence, therefore, we
find that no downward adjustment from the base forfeiture amount of
$10,000 is warranted. Given the duration of the violation, we do find
that an upward adjustment is appropriate. Applying the Forfeiture
Policy Statement, Section 1.80, and the statutory factors to the
instant case, we conclude that South Bay Aviation is apparently liable
for a forfeiture in the amount of $12,000.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, South Bay Aviation, Inc., is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of twelve thousand dollars ($12,000) for apparently willfully
and repeatedly violating Section 301 of the Act and Section 1.903(a)
of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, South Bay Aviation, Inc.,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
10. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with
any questions regarding payment procedures. South Bay Aviation shall
send electronic notification to WR-Response@fcc.gov on the date said
payment is made.
11. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
Western Region, Los Angeles Office, 18000 Studebaker Road, Suite 660,
Cerritos, CA 90703 and must include the NAL/Acct. No. referenced in
the caption. An electronic copy shall be sent to WR-Response@fcc.gov.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent both by regular mail and by Certified
Mail, Return Receipt Requested, and regular mail, to South Bay
Aviation, Inc., 3481 Airport Drive, Suite 100, Torrance, CA, 90505.
FEDERAL COMMUNICATIONS COMMISSION
Nader Haghighat
District Director
Los Angeles District Office
Western Region
Enforcement Bureau
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
See Letter of Inquiry from Nader Haghighat, District Director, Los
Angeles Office, Western Region, Enforcement Bureau, to South Bay Aviation,
Inc., dated March 23, 2010 ("LOI").
See Letter from to South Bay Aviation, Inc., to Nader Haghighat, District
Director, Los Angeles Office, Western Region, Enforcement Bureau, dated
April 5, 2010 ("LOI Response").
See File Number 0004197709, granted May 28, 2010.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7
FCC Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S: 301.
47 C.F.R. S: 1.903(a).
See supra n.8.
See supra n.7.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture, 19
FCC Rcd 7433, 7438 (2004). See also La Carpa Corp., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd
2744, 2745 (Enf. Bur., Spectrum Enf. Div., 2007) (forfeiture paid); Lazer
Broadcasting Corp., Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd 8710, 8712 (Enf. Bur., Spectrum Enf.
Div., 2006) (forfeiture paid); Shared
Data Networks, LLC, Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd 18184, 18186 (Enf. Bur., Spectrum
Enf. Div., 2005) (forfeiture paid).
See also BASF Corporation, Notice of Apparent Liability for Forfeiture, DA
10-2347 P: 10 (Enf. Bur., Rel. Dec. 17, 2010).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 1.903(a), 0.311, 0.314,
1.80.
See 47 C.F.R. S: 1.1914.
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(continued....)
Federal Communications Commission DA 11-180
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Federal Communications Commission DA 11-180